2005 BCCA 7 Neufeld v. Neufeld

Before:	The Honourable Madam Justice Rowles
	The Honourable Mr. Justice Low
	The Honourable Madam Justice Levine

J. Fairburn	Counsel for the Appellant
K.E. McNeilly	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
November 23, 2004
Place and Date of Judgment:	Vancouver, British Columbia
January 10, 2005

Written Reasons by:

The Honourable Madam Justice Levine

Concurred in by:

The Honourable Madam Justice Rowles
The Honourable Mr. Justice Low

Reasons for Judgment of the Honourable Madam Justice Levine:

Introduction

[1] This appeal concerns the entitlement to child support of an adult child attending university full-time, seeking a post-graduate degree in medicine.

[2] A Supreme Court chambers judge found that the parties' daughter, J., was entitled to child support as a "child of a marriage" within the meaning of s. 2(1) of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.). He determined the amount of child support payable by the father by applying the Child Support Guidelines as if J. were under the age of majority (under s. 3(2)(a) of the Guidelines). The father was ordered to pay both the "table amount" and "special and extraordinary expenses" of 50 per cent of J.'s educational and residential expenses.

[3] The father appeals. He argues that J. is not a "child of the marriage" and if she is, she is nonetheless not entitled to the amount of child support determined by the chambers judge. He argues that the chambers judge erred in his application of the applicable legal principles to the facts in three ways: failing to find that J. could finance her education through student loans; giving excessive weight to the family plans that she would attend medical school; and failing to find that it was inappropriate to order that he pay both the "table amount" and a share of J.'s education and residential expenses.

[4] It is my opinion that the chambers judge correctly determined that J. is a "child of the marriage". In the circumstances of this case, I would not interfere with the amount of child support determined to be payable by the father except to order that he pay it in two lump sums of $11,000 each (less 50 per cent of any scholarships, bursaries and awards received by J.) on July 1 and January 1 of each year that J. attends medical school, commencing July 1, 2004.

Background

[5] The parties were married for 27 years before they separated in 1999. They were divorced in 2001. They have two children, J., born in 1981 and a son, born in 1984. The father is a medical doctor; the mother a homemaker. At the time of the application appealed from, J. had an undergraduate degree and had been accepted into medical school at the University of British Columbia ("UBC"), in accordance with the family's plans for her education before the parents' separation. The chambers judge described J. as an "exemplary student".

[6] In the "child support" provisions of their separation agreement entered into in December 1999, the parties agreed that the father would pay child support for the two children in the "Table Amount", then agreed to be $1,450 per month. They also agreed that "all costs of education" would be "Special or Extraordinary Expenses", and they would "share the costs of reasonable Special or Extraordinary Expenses, other than medical or dental expenses, equally." The agreement provided that:

13. The obligation to pay Child Support ceases in respect of a Child who:

. . .

(c) becomes 19 years old, unless the Child remains a "child of the marriage" within the meaning of the Divorce Act because of inability to become self-supporting due to illness, disability, the pursuit of education, or other cause.

[7] After a ten-day trial, in June 2002 L. Smith J. made an order varying the separation agreement, but the provisions relating to child support were not changed. At that time, J. was an undergraduate. The order required the father to:

. . . pay fifty percent (50%) of the tuition for [J.] to complete her undergraduate university program, after application of any scholarship or bursary money designated for tuition, as a special or extraordinary expense;

[8] There were further disagreements between the parties concerning the amount and payment of child support by the father, resulting in an order of Bauman J. in March 2003 and a settlement in July 2003. These are not directly relevant to the issues in this appeal.

[9] The order appealed from was made on June 30, 2004 in response to cross-applications by the parties. The mother brought an application in February 2004 for an increase in monthly child support based on a redetermination of the father's income and an order that the father "pay his proportionate share of the children's tuition, education expenses and housing/meal plan costs should the children reside in campus". The father sought an order that J. was no longer a child of the marriage, effective June 1, 2004; alternatively, that support for both children be determined in accordance with s. 3(2)(b) of the Guidelines; and that all payments for the two children be paid directly to them or on their behalf by a family trust.

[10] The chambers judge determined the father's income for the purposes of the Guidelines was $170,000. That determination has not been appealed. The chambers judge set child support for the two children as the "table amount" of $1,915 per month. The father does not dispute his obligation to support his son. Child support for the son only would be $1,207 per month.

[11] The mother's income is spousal support of $3,000 per month.

[12] The chambers judge ordered the father to pay, as an extraordinary expense, 50 per cent, in accordance with the separation agreement, of J.'s education and accommodation (outside the home) expenses for four years of medical school. These expenses were determined to be $28,181 in first year, $26,608 in second year, $24,160 in third year and $28,117 in fourth year, based on information obtained from the UBC Medical School website.

[13] Under the order, the father would be required to pay (after excluding $1,207 per month of child support for his son) the following amounts for support of J.:

Year 1	$22,586.50	$1,882.20 per month
Year 2	21,800.00	1,816.67 per month
Year 3	20,576.00	1,714.67 per month
Year 4	20,430.50	2,270.05 per month (for 9 months)
Total	$85,393.00

[14] On the appeal, the father applied to admit new evidence that J. did not accept the position in the medical school at UBC but is attending medical school at the University of Calgary. The mother initially objected to the admission of new evidence although she responded to it, stating in her affidavit that the program in Calgary is less expensive than UBC as it is three full years instead of four. She submitted a budget for J.'s expenses in Calgary. During oral argument, the mother's counsel abandoned her objection to the new evidence.

[15] As the new evidence is not the result of any lack of due diligence and is relevant to a proper determination of the issues, I would admit the evidence put forward by each party.

Child of the Marriage

[16] Under s. 15.1(1) of the Divorce Act, a court may make an order "requiring a spouse to pay for the support of any or all children of the marriage". The definition of "child of the marriage", in s. 2(1) of the Act, includes a child who:

(b) is the age of majority or over and under their [her parents] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

[17] The parties' separation agreement similarly provides that child support will cease for a child who is not a "child of the marriage" within the meaning of the Divorce Act.

[18] The pursuit of education necessary to equip a child with a career qualifies as "other cause" for continuing dependence of a child of or over the age of majority: Martin v. Martin (1988), 26 B.C.L.R. (2d) 390 at 393 (C.A.). In determining whether a child pursuing an education is unable to withdraw from her parents' charge or obtain the necessaries of life a court must consider the surrounding circumstances; mere attendance at an educational institution is not sufficient: Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) 121 at para. 17 (B.C.S.C.).

[19] A list of relevant circumstances was formulated by Master Joyce (as he then was) in Farden v. Farden (1993), 48 R.F.L. (3d) 60 at para. 15 (B.C.S.C.) and referred to by this Court in Darlington v. Darlington (1997), 32 R.F.L. (4th) 406 at para. 14 (B.C.C.A.). These factors were considered by the chambers judge, who noted that in Darlington, this Court made it clear that there does not have to be evidence on all of the factors in order to establish that a child is a "child of the marriage" because she is pursuing an education. Nor should this list be considered to be exhaustive of the relevant factors.

[20] The factors outlined in Farden are:

(1) whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies;

(2) whether or not the child has applied for or is eligible for student loans or other financial assistance;

(3) the career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4) the ability of the child to contribute to his own support through part-time employment;

(5) the age of the child;

(6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

[21] The father's objections to the chambers judge's finding that J. was a "child of the marriage" focus on the second and seventh of the factors set out in Farden. He claims that the chambers judge underemphasized the requirement that J. seek student loans to finance her education and overemphasized the parents' pre-separation plans for her education.

[22] These two alleged errors may be resolved by the approach taken in Darlington. The factors set out in Farden are not a set of minimum criteria all of which must be satisfied. They are relevant factors to be considered, along with others that are relevant in the circumstances. The determination is fact-specific.

[23] The first alleged error is essentially that the chambers judge failed to find that J. has to exhaust other sources of financial assistance, including student loans, before she can be found to be unable to withdraw from her parents' charge or obtain the necessaries of life.

[24] As the chambers judge noted, the availability of student loans is "merely one factor among many to be considered". It is not necessary that the child exhaust every source of funding. In this case, this father has the means to assist J. with her educational expenses. She is a diligent, exemplary student who has contributed to her educational expenses by qualifying for and receiving scholarships, bursaries and grants. In fact, the father claims that he was not required to contribute to the first two years of her undergraduate degree because she received scholarships and grants that exceeded her expenses. The chambers judge provided for scholarships, bursaries and grants to be deducted from her expenses in determining the amounts payable by her parents.

[25] J. will likely need further training after obtaining her M.D. which will limit her ability to repay loans on graduation. She should not be put in the position of having to incur large amounts of debt to achieve what is agreed to be a realistic, achievable educational goal.

[26] The second alleged error is that the chambers judge overemphasized the fact that the parents had always planned that J. would go to medical school and "follow her father into the family career". The father claims that by finding this factor to be "particularly compelling", the chambers judge failed to address the "core inquiry" of whether she was unable to withdraw from her parents' charge.

[27] The father cited in support of his argument Maurice v. Maurice, [1993] B.C.J. No. 1461 (S.C.)(QL), where the Court found that daughters aged 26 and 21, pursuing "achievable, realistic and legitimate" educational goals in second degrees were no longer entitled to child support. The judge in that case considered the age, educational levels and abilities of the children, and also the "age of the respondent, his income and the state of his health".

[28] In this case, the evidence is that the father has sufficient income to support J.'s achievable, realistic and legitimate educational goals, and there is no evidence that anything about his age or health would limit his ability to assist her. Nothing in the separation agreement precluded post-graduate education.

[29] There is no general principle that a child seeking a second degree does not qualify for child support. As stated by Freeman J.A. for the Nova Scotia Court of Appeal in Martell v. Height (1994), 3 R.F.L. (4th) 104 at para. 8:

There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier.

See also: Jamieson v. Jamieson (1995), 14 R.F.L. (4th) 354 at para. 23 (N.B.C.A.).

[30] The jurisprudence supports the view that there is a wide range of factors to be considered in the determination of whether a child is a "child of the marriage" and that individual factors will be of varying importance in different cases. All of the relevant factors must be considered. There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance.

[31] The father has not demonstrated that the chambers judge made any error in principle or misapprehended the facts of this case so as to permit this Court to interfere with the determination that J. is a child of the marriage. I would dismiss this ground of appeal.

Amount of Child Support

[32] The Guidelines provide two ways to determine the amount of child support for a child of the age of majority or over. Section 3(2) provides:

Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[33] Section 7 of the Guidelines is also relevant. It provides that an order for child support may include provision for "special and extraordinary expenses", including, in s. 7(1)(e), "expenses for post-secondary education". In making an order for payment of special and extraordinary expenses, the court is to take into account

. . . the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

[34] Section 7(2) provides for the sharing of special and extraordinary expenses. It reads:

The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[35] In rejecting the father's argument that he should apply s. 3(2)(b) of the Guidelines, the chambers judge did not consider the developing jurisprudence in B.C. Supreme Court and other jurisdictions that has found that where an adult student is living away from home, determining child support by using the "table amount" and adding "special and extraordinary expenses", as directed by s. 3(1) of the Guidelines for children under the age of majority is, in principle, "inappropriate". In those cases, child support has instead been determined by applying s. 3(2)(b).

[36] The choice between ss. 3(2)(a) and 3(2)(b) of the Guidelines when determining child support for an individual who remains a child because of his pursuit of post-secondary education was considered by Pitfield J. in Whitley v. Whitley, [1997] B.C.J. No. 3116 (S.C.)(QL) and Johnson v. Johnson, [1998] B.C.J. No. 1080 (S.C.)(QL), and by Martinson J. in Griffiths v. Griffiths, [1998] B.C.J. No. 2000 (S.C.)(QL) and Wesemann v. Wesemann (1999), 49 R.F.L. (4th) 435 (B.C.S.C.).

[37] In Johnson, Pitfield J. concluded (at para. 12) that computing child support by reference to the tables in the Guidelines is not appropriate for students who live at home or away from home depending on convenience, affordability and need. He found that the cost of post-secondary education, including tuition and institutional expenses, room and board or equivalent expenses, books, travel and miscellaneous expenses reasonably attributable to or arising from the pursuit of that education, should be shared by the parents in proportion to their incomes computed with regard for the Guidelines, after taking into account the amount the student can reasonably contribute. Mr. Justice Pitfield commented that s. 7 of the Guidelines, which provides for the determination and proportional sharing of "special or extraordinary expenses", including "expenses for post-secondary education", contemplated such an approach. He expressed the view that such an order could be made whether or not an order for basic child support in the "table amount" was made.

[38] In Wesemann, Martinson J. formulated (at para. 6) a four-step test for determining the "appropriate" amount of child support under s. 3(2) of the Guidelines. Those four steps are:

Step One

Decide whether the child is a "child of the marriage" as defined in the Divorce Act? If s/he is not, that ends the matter.

Step Two

Determine whether the approach of applying the Guidelines as if the child were under the age of majority ("the usual Guidelines approach") is challenged. If that approach is not challenged, determine the amount payable based on the usual Guideline approach.

Step Three

If the usual Guidelines approach is challenged, decide whether the challenger has proven that the usual Guidelines approach is inappropriate. If not, the usual Guidelines amount applies.

Step Four

If the usual Guidelines amount is inappropriate, decide what amount is appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child?

[39] The second and third steps of the test as articulated by Martinson J. require that one of the parties challenge the application of the "usual Guidelines approach" to determining child support. There may be cases, however, where a party has not challenged the appropriateness of the application of s. 3(2)(a), but the court considers, on the facts of the particular case, that it is inappropriate. In my opinion, the absence of a challenge does not preclude consideration of s. 3(2)(b) and in such a case, the court should determine child support under that provision.

[40] In the case of an adult student living away from home, Martinson J. provided the following rationale for finding that the "usual Guidelines approach" is inappropriate (at paras. 16-18):

The usual Guidelines approach is based on certain factors that normally apply to a child under the age of majority. That is, the child resides with one or both parents. The child is generally not earning an income and is dependent on his or her parents.

The usual Guidelines approach is, in most cases, based on the understanding that, though only the income of the person paying is used to calculate the amount payable, the other parent makes a significant contribution to the costs of that child's care because the child is residing with him or her.

The closer the circumstances of the child are to those upon which the usual Guidelines approach is based, the less likely it is that the usual Guidelines calculation will be inappropriate. The opposite is also true. Children over the age of majority may reside away from home and/or earn a significant income. If a child is not residing at home, the nature of the contribution towards the child's expenses may be quite different.

[41] Whitley, Johnson and Wesemann have been applied by other Supreme Court judges in determining child support for students living away from home under s. 3(2) of the Guidelines. In Kembi v. Kembi, [1999] B.C.J. No. 165 (S.C.)(QL); McLean v. McLean, 2000 BCSC 433; Sapergia v. Sapergia, 2001 BCSC 818; Karhoffer v. Karhoffer, 2002 BCSC 1570; and Watts v. Willie, 2004 BCSC 1136, the Court held that the "usual Guidelines approach" provided under s. 3(2)(a) was inappropriate and determined the amount of child support under s. 3(2)(b) of the Guidelines, taking into account the needs and contributions of the student and the ability of the parents to assist financially. A similar approach has been adopted in other provinces: see Power v. Hunt (2000), 196 Nfld. & P.E.I.R. 149, [2000] N.J. No. 315 (S.C.)(QL); Hagen v. Rankin (2002), 24 R.F.L. (5th)38 (Sask.C.A.); Samson v. Samson (2003), 49 R.F.L. (5th) 202 (Nfld. S.C.(T.D.)).

[42] In my opinion, in principle, support for an adult child who is entitled to child support because of his or her attendance at a post-secondary institution generally should be determined under s. 3(2)(b). The "table amount", as noted by Martinson J. in Wesemann, contemplates a contribution by the non-custodial parent to the expenses borne by the custodial parent in providing a home for the child. The fact that the "table amount" increases incrementally and not absolutely for additional children supports that interpretation of the intention of the Guidelines. The "table amount" does not contemplate a child's contribution, which is an important factor in considering the amount of support a student requires.

[43] None of the cases I have reviewed considered the interaction among s. 3(2)(b), s. 7 and a separation agreement. The relevance of that interaction in this case is that the parties agreed that the father would pay the "Table Amount" and that "all costs of education" would be "special and extraordinary expenses" they would share equally.

[44] In Karhoffer, McKinnon J. suggested that if s. 3(2)(b) is applied, then s. 7 should not be considered and the court must decide what amount is appropriate. He noted that ss. 3(2)(b) and 7(1) both require consideration of the means of the child. He cited McLean as authority for the proposition that where the order is made under s. 3(2)(b) instead of s. 7, the court may nonetheless apply the expense sharing principle (see paras. 70-72).

[45] In my view, child support determined under s. 3(2)(b) does not necessarily preclude a specific award for "special and extraordinary expenses" under s. 7, where appropriate. The existence of a separation agreement that expressly deals with specific expenses may lead to such an approach.

[46] Such an approach would have been open to the chambers judge. The order made is, however, supportable in the particular circumstances of this case. The chambers judge followed the provisions of the separation agreement in determining the amount of child support payable for J. as the total of the "Table Amount" and 50 per cent of the "costs of education".

[47] The mother did not cross-appeal the refusal of the chambers judge to order that the father pay J.'s education expenses on a proportionate basis or seek an increased amount of child support. She originally sought an order dismissing the appeal, then requested at the hearing that the Court direct that child support for J. be paid semi-annually in two lump sums. The total of the "Table Amount" (which amounts to an increment for J. of just under $8,500 per year) and 50 per cent of the estimated UBC education expenses and rent provides a measure of child support that was apparently acceptable to the mother.

[48] The father sought an order allowing the appeal on the basis that J. was not a "child of the marriage", but did not make any submission on the appropriate amount of child support if we held otherwise.

[49] I would order, as requested by the mother, that the father pay child support in the amount of $11,000 on each of July 1 and January 1 of each year that J. attends medical school, commencing July 1, 2004. Any adjustment for (50 per cent of) scholarships, bursaries and grants received by J. will be made from the payment next following the receipt of the award. The mother will obtain from J. a copy of her academic transcripts and all information concerning the award of any scholarships, bursaries and other financial awards forthwith upon notification. The mother will promptly provide this information to the father.

[50] The father has been paying J.'s child support to her directly from a family trust. He has agreed to indemnify J. for any income taxes payable by her as a result of this arrangement. The chambers judge approved the direct payments to J. from the family trust. The mother has not appealed that part of his order, and I see no reason to interfere with it in these circumstances in any event.

Conclusion

[51] J. is a "child of the marriage" and entitled to child support from her father. The amount of child support determined by the chambers judge is supportable in the circumstances of this case and was not challenged by the mother on the appeal. I would allow the appeal in part, only to vary the order appealed from to provide that the father pay, either directly or from the family trust, the sum of $11,000 to J. on July 1 and January 1 of each year that she is attending medical school, commencing July 1, 2004.

[52] Subject to any submissions the parties may wish to make concerning costs, I would order that the mother is entitled to the costs of the appeal.

“The Honourable Madam Justice Levine”

I AGREE:

“The Honourable Madam Justice Rowles”

I AGREE:

“The Honourable Mr. Justice Low”

Citation:	*Neufeld v. Neufeld,*
	2005 BCCA 7